Immediate and expeditious: what must an employer do in the event of summary dismissal?
Instant dismissal in The Netherlands means that an employer must ‘immediately’ give and communicate that dismissal to the dismissed employee. Of course, such a summary dismissal is only allowed in case of a sufficiently serious, urgent reason, say ‘murder and mayhem’ cases such as fraud and unacceptable behaviour. When exactly must the employer give that dismissal and how long may he wait? What is prompt and expeditious? Our Dutch employment law lawyer in Amsterdam, Mr Paul Snijders, who specialises in dismissal, discusses this. What does Dutch case law say about this?
What is immediate?
By proceeding with dismissal ‘without delay’, the employer shows how urgent the reason for the dismissal is for him. With the dismissal, it shows that it no longer wishes to continue the employment contract in connection with it.
The term ‘forthwith’ literally means ‘without delay’, or: immediately.
Urgent reason notified to the competent officer
When does the time start and does the counter start running for the employer here? According to established case law, the decisive point is the time when the urgent reason came to the knowledge of the person authorised to grant the dismissal. This is not everyone in the company but usually the superior or the management.
Moment when a suspicion of this arises in the employer
This refers to: ‘the moment at which a suspicion thereof arises on the part of the employer’.
According to the Supreme Court, ‘waiting’ after this time to give the immediate dismissal is incompatible with the urgency of the reason for the dismissal, ECLI:NL:HR:1984:AG4814.
Postponement of giving dismissal: under certain conditions
In an important ruling, the Supreme Court has left the door ajar for an employer who still wants to wait. When is that allowed?
Satisfy himself of the correctness of that presumption
If an employer is suspected of having an urgent reason to dismiss an employee, he may want to ascertain the correctness of this suspicion. In doing so, the necessary diligence depends on the circumstances of the case.
Among the factors that may play a role are:
- the nature and extent of any necessary investigation;
- the caution required in an investigation so as not to create unrest in the company;
- the need to obtain legal advice and gather evidence;]
- to avoid that, in case of unfounded findings of suspicion, the employee’s legitimate interests would be harmed.
Evidence on dismissal need not yet be 100% complete
In short, the basic principle is that an employer should dismiss immediately, unless it really is undesirable at the time.
Contrary to what many employers think, the issue is not that all the evidence must be 100 per cent complete at the time of dismissal. The immediacy requirement can force the employer to give instant dismissal without all the evidence having already been gathered. After all, providing the rest of the evidence can also be done during legal proceedings (additional evidence).
Concretised presumption
The court in Rotterdam explained this as follows:
(…) an individualised and concretised presumption, i.e. a reasonable degree of clarity … From that point on, the party contemplating a termination for serious cause has some, but not much, respite before actually proceeding with dismissal. Provided it is acted with due diligence, there is an opportunity to investigate the employee’s alleged conduct(s), hear the employee, hold internal consultations and seek legal advice.
What is diligent conduct?
Court of Limburg ruled on the counter for the immediate notice as follows:
Accordingly, the counter for the forthwith termination and the forthwith notice begins to run on 21 March 2023. The period between becoming aware of the ground(s) and the termination on 25 March 2023 is not considered by the subdistrict court to be non-immediate … In the context of promptness, the employer will have to act expeditiously. Whether this was done depends on the circumstances of the case. Circumstances that may arise are the nature and extent of any necessary investigation, the caution that may be required in conducting the investigation so as not to create unrest in the company, the possible need to seek legal advice and the collection of evidence. None of this is evident in the days taken after the termination. After all, the legal adviser had been involved for some time, nothing was stated or shown of further investigation. Therefore, the grounds could and should have been communicated earlier.
Acting energetically: at the weekend too
Whether a weekend follows the creation of a suspicion does not matter, even then the employer must still “act expeditiously”.
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